be permanent, compensation shall be paid to the employee "during the continuance of such total disability." It has been adjudged in the earlier stages of this case that the accident suffered by plaintiff resulted in his permanent total disability. It is conceded that this total disability continues and that there is no change in plaintiff's physical condition in this respect. Under the language of the Act referred to above, defendant is obliged to pay compensation during the continuance of the total disability, and therefore the fact that plaintiff would have been disabled even if the accident had not occurred appears to be immaterial.
The meager authorities which bear closely on this question are in accord with this conclusion. In Bay Ridge Operating Co. Inc. v. Lowe, D.C., 14 F.Supp. 280, it was held that the fact that an employee receiving compensation under the Act for disability became insane from causes independent of the accident and therefore would have been totally disabled even if the accident had not occurred, did not justify a cessation of compensation payments. Said Judge Goddard at page 281 of 14 F.Supp: "Section 908(b) states that the compensation for a temporary disability is to be paid 'during the continuance thereof.' Nothing in this section nor in the act is said about the period for the payments of compensation being further limited. The act does not say that although the disability continues, payments are to cease in the event that the employee later also becomes incapacitated from another cause. If the plaintiff's contention is right, it must be because such a limitation is to be read into the statute and to do this would be contrary to the general policy in dealing with this statute and which should be liberally construed. Rothschild & Co. v. Marshall [9 Cir.], 44 F.2d 546; DeWald v. Baltimore & O.R. Co. [4 Cir.], 71 F.2d 810.
"It could not reasonably be contended that if an employee receiving payment for a permanent total or permanent partial disability met with another accident or from some other cause suffered another permanent disability, that the employer could then stop his payment. There is nothing in the statute to indicate that the Congress intended to make a distinction in this respect between a disability that was permanent and one that still existed but was temporary."
In Atlantic Coast Shipping Co. v. Golubiewski, D.C., 9 F.Supp. 315, it was held that the fact that a recipient of compensation payments for disability was imprisoned for life upon being convicted of murder did not relieve his employer from the payment of the compensation provided for by the Longshoremen's and Harbor Workers' Compensation Act.
It is true of course that if the total disability resulting from the accident ceases, the fact that there is no cessation of total disability because the employee during its continuance has been totally disabled from an independent supervening cause would not preclude the termination of compensation payments. Thus if the total disability of an employee resulting from an accident ceases after two years, compensation payments could then be terminated at the end of that period even though in the meanwhile the employee had developed a disease unrelated to the accident, which disease caused him to be totally disabled. It is this situation which the defendant argues is presented by the facts of the instant case. This argument has superficial merit because the disease from which the plaintiff was suffering at the time of the accident and which was so aggravated thereby as to cause his permanent total disability was the disease which would have caused his total disability within two years irrespective of the accident. But the fallacy of the argument is apparent if it be assumed that the plaintiff had a different disease which would have totally disabled him in two years irrespective of the accident. Under these circumstances, the fact that the second disease would have totally disabled the plaintiff would not have relieved the defendant from continuing payments of compensation for the total disability resulting from the aggravation of the first disease by the accident. Similarly, the defendant is not relieved from continuing payments of compensation for the total disability resulting from the aggravation of the disease from which the present plaintiff was suffering, because it is that same disease which would have totally disabled him irrespective of the accident. In each case the accident was the cause of the permanent total disability and in each case the fact that the claimant would have been permanently and totally disabled irrespective of the accident does not relieve the defendant of the obligation to continue payment of the compensation. The total disability caused by the accident continues, and it is therefore immaterial whether total disability would have occurred independently of the accident.
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